The Battle to Save the Constitution, limited government, federalism, and liberty

Good Question, Mr. Chief Justice!

Ilya Shapiro points out an interesting exchange from the oral argument on ObamaCare. When the Solicitor General asserted that the Court “has got an obligation to construe [the mandate] as an exercise of the tax power, if it can be upheld on that basis,” the Chief Justice interrupted him, and they had the following exchange:

CHIEF JUSTICE ROBERTS: Why didn’t Congress call it a tax, then?

GENERAL VERRILLI: Well—

CHIEF JUSTICE ROBERTS: You’re telling me they thought of it as a tax, they defended it on the tax power. Why didn’t they say it was a tax?

GENERAL VERRILLI: They might have thought, Your Honor, that calling it a penalty as they did would make it more effective in accomplishing its objective. But it is—in the Internal Revenue Code it is collected by the IRS on April 15th. I don’t think this is a situation in which you can say—

CHIEF JUSTICE ROBERTS: Well, that’s the reason. They thought it might be more effective if they called it a penalty.

GENERAL VERRILLI: Well, I—you know, I don’t—there is nothing that I know of that illuminates that, but certainly…

What caused Roberts to adopt the position put forth by the bumbling Verilli? Speculation continues, but as Ilya suggests, perhaps Roberts was against treating the mandate as a tax before he was for it.

My Latest Book

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The Constitution's stated purpose is to create "a more perfect Union." But what if our union has become too perfect? What if our national government has become too powerful? What if our states are losing the very powers and freedoms that made our country what it is?

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The Naked Constitution, by Adam Freedman

At a time when our liberties are under attack by politicians and judges who treat the Constitution as a decorative prop, Adam Freedman delivers a much needed counterattack. In The Naked Constitution, Freedman demolishes the bogus theories taught at elite law schools and explains how we can return to the Founders’ principles of individual liberty and limited government.